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Judgment of the Court of 17 November 1992.

Commission of the European Communities v Kingdom of the Netherlands.

C-157/91 • ECLI:EU:C:1992:442 • 61991CJ0157

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Commission of the European Communities v Kingdom of the Netherlands.

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Keywords

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Member States ° Obligations ° Implementation of directives ° Failure ° Justification ° Existence in the directive not transposed of a provision authorizing Member States to apply transitional measures ° No justification

(EEC Treaty, Arts 169 and 189, third para.)

Summary

A Member State cannot, as justification for failure to transpose a directive within the prescribed period, rely on a provision in the directive which authorizes Member States to apply transitional measures for a specified period after implementation of the directive at national level. Acceptance of such an argument would lead to prolongation of the period allowed for transposition of the directive.

Parties

In Case C-157/91,

Commission of the European Communities, represented by A. Caeiro, Legal Adviser, and B.M.P. Smulders, of its Legal Service, acting as Agents, with an address for service in Luxembourg at the office of R. Hayder, of its Legal Service, Wagner Centre, Kirchberg,

applicant,

v

Kingdom of the Netherlands, represented by J.W. de Zwaan and T. Heukels, Deputy Legal Assistants in the Ministry of Foreign Affairs, with an address for service in Luxembourg at the Netherlands Embassy, 5 Rue C.M. Spoo,

defendant,

APPLICATION for a declaration that, by failing to bring into force within the prescribed period the laws, regulations and administrative provisions necessary to comply with the provisions of Eighth Council Directive 84/253/EEC of 10 April 1984 based on Article 54(3)(g) of the Treaty on the approval of persons responsible for carrying out the statutory audits of accounting documents (OJ 1984 L 126, p. 20) and to inform the Commission thereof without delay, the Kingdom of the Netherlands has failed to fulfil its obligations under the EEC Treaty,

THE COURT,

composed of: C.N. Kakouris (President of Chamber), acting as President, M. Zuleeg and J.L. Murray (Presidents of Chambers), G.F. Mancini, F.A. Schockweiler, J.C. Moitinho de Almeida, F. Grévisse, M. Diez de Velasco and P.J.G. Kapteyn, Judges,

Advocate General: M. Darmon,

Registrar: H. von Holstein, Deputy Registrar,

having regard to the Report for the Hearing,

after hearing oral argument from the parties at the hearing on 9 June 1992,

after hearing the Opinion of the Advocate General at the sitting on 7 July 1992,

gives the following

Judgment

Grounds

1 By application lodged at the Court Registry on 14 June 1991 the Commission of the European Communities brought an action under Article 169 of the EEC Treaty for a declaration that, by failing to bring into force within the prescribed period the laws, regulations and administrative provisions necessary to comply with the Eighth Council Directive 84/253/EEC of 10 April 1984 based on Article 54(3)(g) of the Treaty on the approval of persons responsible for carrying out the statutory audits of accounting documents (OJ 1984 L 126, p. 20, hereinafter "the directive") and to inform the Commission thereof without delay, the Kingdom of the Netherlands had failed to fulfil its obligations under the EEC Treaty.

2 The object of the directive is in particular to harmonize the qualifications of persons entitled to carry out the statutory audits of the annual accounts of certain types of company. For that purpose it contains rules on approval (Section II), professional integrity and independence (Section III) and publicity (Section IV).

3 Reference is made to the Report for the Hearing for a fuller account of the facts of the case, the procedure and the pleas and arguments of the parties, which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court.

4 The Kingdom of the Netherlands maintains that the Netherlands legislation in force satisfies the requirements of the directive in relation to professional integrity, independence and publicity, apart from the provisions concerning practical training, Articles 4 and 8 of which, in particular, are not formally transposed into Netherlands law. It contends that, in so far as the application is well founded, the finding of a failure should relate only to Articles 4 and 8 of the directive.

5 When asked by the Court to specify the subject-matter of the failure to fulfil obligations the Commission stated that it rejected the position of the Kingdom of the Netherlands which sought to limit the scope of the infringement, since Articles 4 and 8 affected all the provisions of the directive. During the oral procedure it nevertheless admitted that only Articles 28 and 30(1) of the directive were affected.

Articles 4 and 8 of the directive

6 Although the Netherlands Government recognizes that Articles 4 and 8 of the directive have not formally been transposed into national law, it nevertheless cites Article 18 of the directive which authorizes Member States to apply, for a maximum period of six years after application of the directive at the domestic level, transitional measures in respect of persons already undergoing professional or practical training.

7 The Kingdom of the Netherlands stresses that the great majority of students in accountancy in fact acquire practical training and that when in six years' time the period referred to in Article 18 of the directive expires, the training of all those who complete their studies as auditors will comply with the directive.

8 That argument cannot be accepted, since it would lead to prolongation of the period allowed for transposition of the directive, which is laid down in Article 30; the period of application of the provisional measures provided for in Article 18 of the directive concerns a completely different question.

9 In contrast to Article 30, the object of Article 18 is to govern the transitional period between the previous system of training and the new system introduced into Member States precisely by the adoption of national measures of transposition. The application of transitional measures of a limited duration relating to that transposition thus presupposes that the Member State has previously transposed the directive.

Article 28 of the directive

10 The Commission also referred to the failure to transpose Article 28 of the directive, which seeks to ensure that the names and addresses of all natural persons and firms of auditors approved to carry out statutory audits of the documents referred to in Article 1(1) are made available to the public. According to the Commission the failure in relation to that provision arises from the fact that the Netherlands legislation provides for a register to be kept in which may be entered the names of auditors who have satisfied certain criteria of integrity and fairness, but which does not state whether or not they satisfy the requirements of practical training provided for by the directive.

11 In the written procedure the Kingdom of the Netherlands maintained that the Netherlands legislation already satisfied the requirements of the directive in relation, inter alia, to Section IV concerning publicity, of which Article 28 of the directive forms part. At the hearing it stated that the legislation in question was Article 55 et seq. of the Netherlands law on auditors.

12 The Court has consistently held that when, as in this case, an action is brought before the Court under Article 169 of the Treaty alleging failure by a Member State to fulfil its obligations, it is the Commission' s responsibility to prove that the obligation has not been fulfilled and to provide evidence (see Case 141/87 Commission v Italy [1989] ECR paragraphs 15 and 17). The Commission alleges that the Netherlands legislation is defective but nevertheless does not give details of its complaint by reference to that legislation and does not adduce any evidence of a failure to comply with Article 28 of the directive.

13 Consequently the complaint in that respect must be rejected.

Article 30(1) of the directive

14 The Commission seeks a declaration that the Kingdom of the Netherlands has failed to comply with the abovementioned provision, which requires Member States to transpose the directive within the period prescribed and forthwith to inform the Commission thereof.

15 With regard to the requirement to transpose the directive into national law, the Commission, as has been pointed out above, has confined the subject-matter of its application to the transposition of Articles 4, 8 and 28 of the directive, which have been considered above.

16 With regard to the failure to inform the Commission of the measures adopted it must be pointed out that that complaint was not mentioned in the reasoned opinion sent by the Commission to the Kingdom of the Netherlands, as the Commission recognized in the oral procedure.

17 The Court has consistently held that an application may not be based on complaints other than those set out in the reasoned opinion. It follows that the Commission' s complaint relating to Article 30(1) of the directive must be rejected.

18 In view of all the foregoing it must be declared that, by failing to bring into force within the prescribed period all the laws, regulations and administrative provisions necessary to comply with Articles 4 and 8 of the Eighth Council Directive 84/253/EEC of 10 April 1984, based on Article 54(3)(g) of the EEC Treaty, on the approval of persons responsible for carrying out the statutory audits of accounting documents, the Kingdom of the Netherlands has failed to fulfil its obligations under the Treaty.

Decision on costs

Costs

19 Under Article 69(2) of the Rules of Procedure the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party' s pleadings. However, the first subparagraph of Article 69(3) provides that the Court may order that the costs be shared or that the parties bear their own costs if each party succeeds on some and fails on other heads.

20 Since the Kingdom of the Netherlands and the Commission have been partially successful in their pleas, they must be ordered to bear their own costs.

Operative part

On those grounds,

THE COURT

hereby:

1. Declares that, by failing to bring into force within the prescribed period all the laws, regulations and administrative provisions necessary to comply with Articles 4 and 8 of the Eighth Council Directive 84/253/EEC of 10 April 1984, based on Article 54(3)(g) of the Treaty, on the approval of persons responsible for carrying out the statutory audits of accounting documents, the Kingdom of the Netherlands has failed to fulfil its obligations under the Treaty;

2. Dismisses the remainder of the application;

3. Orders the parties to bear their own costs.

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